State v. Lankford

781 P.2d 197 Idaho, Plaintiff-Respondent,

STATE of LANKFORD, Henry

Mark

Defendant-Appellant.

Nos. 16192.

Supreme Court of Idaho.

July 1989.

Rehearing Denied Oct. Fitzmaurice,

Gregory Idaho, Grangeville, for defendant-appellant. Jones, Atty.

Jim Lynn Gen. E. Thom- as, Gen., Boise, Sol. plaintiff-respon- for Lynn dent. E. argued. Thomas HUNTLEY, Justice. May Henry

On Mark Lankford guilty was found on two counts of first degree verdicts, murder. Following the sentencing hearing trial court held a and sentenced to death. Lankford Lank- appeals ford the murder convictions and sentence, petition the denial of his amended relief, post-conviction for trial court’s denial of his second motion for new appeals trial. The have been consolidated pursuant to I.C. 19-2719 This on automat- matter is also before the Court provisions They a ic review under the of I.C. walked down mountain road which eventually campsite occupied led to a Cheryl. Bravence and his Robert wife In June of Mark Lankford and his first, Bryan campsite entered the with a Bryan be- packed their brother arms, over his shotgun draped en- longings and from fled their home state gaged the Bravences conversation. pro- Bryan Texas because had violated his Mrs. Bravence left the Shortly thereafter robbery a did not bation for conviction and campsite go nearby down to a stream jail. sent The Lank- want back left, water. After Mrs. Bravence some eventually way fords made their to Idaho ran out from behind some Mark Lankford Idaho, County, they camped a where hiding, had and into bushes where he been campground for remote forest several campsite ordered Robert Bravence time, days. At that same retired Marine ground in front of him. kneel wife, officer Robert Bravence and Che- then Bravence in Mark Lankford hit Robert vacationing camp- ryl, nearby were head wooden back with brown ground. night Cheryl stick. When Bravence re- 24, 1983, the September On bodies campsite to turned to the she rushed Cheryl Bravence were found Robert and lying side of her who was on the husband County Ap- hunters in the forest. ground. Mark Lankford ordered her to mile proximately one-fourth of a from the ground body kneel down on the next to the registered a 1982 bodies Chevrolet Camaro her in the of her husband and struck back Lankford, Houston, Henry Tex- to Mark nightstick. neck with same July On or about the 5th of as was found. placed Bravences' Lankfords bodies registered to Robert and vehicle into van and drove back to the Bravence Ange- Cheryl located Los Bravence was campsite Mark hid the their former where les, Fingerprints taken from California. The Lankfords bodies near his Camaro. items the Bravence vehicle were found Oregon van to and then drove the Bravence Henry belonging to Mark identified. they it later to California where abandoned Lankford. Bryan Lankford and Stuart Angeles. During they their travels in Los Lankford and On Mark October purchased and accommodations with food Liberty County, Bryan were arrested the Bravences’ credit card. arrest, Subsequent authori- Texas. to the Following testimony Bryan Lankford’s belonging the Bravenc- ties found items to Lankford, examination, on direct Mark con- Liberty County campsite. es in court, trary to from counsel and advice were to Idaho where Lankfords extradited attorney own and decided to act as his they separately tried for the murders were After Mark his brother. cross-examine Bryan Cheryl Bravence. of Robert and attempt inadequate at cross-ex- Lankford’s agreed for the to be a witness attorney, objection by his and amination he be- at his brother’s trial because State attorney to re- allowed the the trial court him had offered lieved the State Prosecutor point, Bryan At this Lank- sume his role. life sentence instead an indeterminate privi- his Fifth Amendment ford invoked exchange for testi- the death lege initially refused answer the mony. questions on cross-examina- trial counsel’s reach- After Bryan testified as follows: tion. they hid County forest where ing the Idaho Bryan In Lankford’s testimo- addition to out, to steal an Bryan decided Mark death, ny, pertaining to causes campsite in the area. from a automobile experts testified that State’s medical that, They monthly reasoned because multiple from Bravences died blows payments delinquent, car Mark’s were skull. police searching for it and so would be Bryan Mark and were each convict- capture. After they to avoid needed abandon it degree separate trials for the first ed in They left the car in the woods covered Bravence, Cheryl another car. murders Robert and brush and set off steal

«65 Bryan testimony gave recanted the right he Criminal defendants have the to be Mark’s trial on three represented different occasions. guaranteed by counsel as sentencing At Mark's hearing Bryan testi- the sixth and fourteenth amendments of phone fied that in a conversation he told a I, Constitution and art. United States reporter Morning with the Lewiston Trib- 13 of the Idaho Constitution. addition une that he had lied under oath at Mark’s counsel, guaranteeing right it has trial and that it had been he had who guar- been held that the sixth amendment bludgeoned Bravences, he used a independent antees that a has an defendant rock and that Mark Lankford was not right proceed pro constitutional se when present Later, at the scene. at Mark Lank- voluntarily he intelligently elects to do trial, Bryan ford’s motion for a new Lank- so. California, Faretta v.

ford indicated that he had lied to the Lewi- 812-836, 2525, 2529-2542, Finally, ston being Tribune. after sen- (1975); L.Ed.2d 562 United States v. Har- death, Bryan tenced to Lankford executed ris, (9th Cir.1982) 683 F.2d a written statement in which he (the indicated Harris court found that the defendant culpability his full for the Bravence deaths must charges be aware of the nature of the and Mark’s Lankford's innocence. Then on against possible penalties filed him and the May 29, at Mark’s second motion flowing charges, from those as well as the trial, Bryan a new testified that he was dangers disadvantages repre- of self primarily responsible for the He murders. sentation. The Harris court also held that further testimony testified that his at his the trial court must discuss with the defen- brother’s trial was false. dant, court, open whether the defen- knowingly dant’s waiver was and intelli- 15, 1984, On October the court issued its made, gently understanding with an Findings in Consideration of the Death charges, possible penalties and and dan- Penalty. Judgment and sentence of Death gers representation.) of self See State imposed was on October McCabe, 727, 729, 101 Idaho 620 P.2d 300 (1980), in this Court cites Faretta. I. Right Lankford’s Decision to Ultimately, Waive His the decision of wheth to and right Counsel Cross-examine His er pro to exercise the to counsel or

Brother Pro Se. pro ceed se is for the defendant to make. simply role of the trial is Mark Lankford claims that he was ensure that where the defendant waives deprived right guaran of his to counsel as right he or to counsel she does so by teed the sixth and fourteenth amend knowingly intelligently. and ments to the United States Constitution case, and art. 13 of the Idaho great Constitution In this the trial court went to § when the trial court lengths allowed him to cross- that Mark to ensure Lankford’s pro right examine his brother se. He claims that waiver of his to counsel was made law, State, Idaho case knowingly intelligently, Bement v. and and to dis- (1966), proceeding pro 422 P.2d 55 and I.C. suade Lankford from se. (1987), 19-857 mandate more him than a The trial court warned of the hazards § encounter, mere is affirmative waiver needed to show he would that he had an insuffi- witnesses, background knowingly that the defendant and intelli- cient to examine the gently right waived his to counsel. Lank- and that he would be held to the Rules of proceed ford claims that the trial court did not Evidence if he elected to on his requisite penetrating spite warnings, conduct the and ex- own In behalf. these waiving tensive into all right examination of the circum- Lankford insisted on his waiver; and, proceeded pro during stances of Lankford’s as a counsel and se result, right he was allowed to waive his cross-examination of his brother. In re- insistence, passion sponse counsel in the heat of and without to Lankford’s the trial knowledge poten- only thing sufficient of his court did the it could do—it waiver’s granted though tial ramifications. his wish. Even the trial pro se, is proceed 18-4001. Murder defined.—Murder court allowed Lankford to being killing of a human protected reflects the unlawful the record the court still aforethought____ with malice as it the circum- him as much could under counsel stances. It allowed Lankford’s (1987)provides that Idaho Code 18-4002 § pro present during Lankford’s se remain implied.” may express malice or “such activities; procedural it assisted him on 18-4003(d) (1987) addition, pro- I.C. In during attempt cross-examina- points vides: tion; finally, it at- allowed Lankford’s 18-4003(d). murder committed Any through torney go entire recross-ex- an of, attempt perpe- perpetration or after terminated his amination Lankford arson, rape, burglary, robbery, kid- trate attempt. botched napping mayhem is murder degree. first We affirm trial court on issue.

Thus, the proof of a murder in the its degree first is in all of ele established II. (a) killing by proving ments the unlawful being (b) of a a human in the course rob That The Trial Court’s Instruction Malice bery. requirement of “malice afore Be Established Proof That Could thought” killing fact the satisfied During Killing Took Place perpetration committed in the of a was Attempted Perpetra- Perpetration Scott, Jr., A. robbery. W. La Fave and Robbery. of a tion Law, 67 Murder—“Malice Criminal In- argues giving of that the Aforethought” “Living Being,” Human 24(a) No. reversible error. struction Murder, 528-530, Felony pp. pp. 7§ The instruction reads: (1972), and 554 the authors ex necessarily plain: im- The term malice does not injured,

port ill will toward the individual crime whose is a common law Murder malignant signifies general required rather a complete development but several safety Though frequently the lives and murder is recklessness toward centuries. killing of another may Malice shown from unlawful of others. be defined “living being” with “malice afore- killing took human fact that an unlawful thought,” in times latter attempt- modern during perpetration or place lit- phrase approximate does its not even robbery. perpetration ed of the crime of meaning. preferable it eral Hence instruc Lankford claims that misleading expression rely upon that First, respects. tion was incorrect two murder rath- understanding of but for an argues that it as a matter of law he states types of mur- consider various er to attempted killing perpetration or a that mental ele- according to the (typed der per felony of a is malice se. perpetration ment) law came which the common rea Second, argues jury could have he today in exist most recognize as cre sonably interpreted the instruction jurisdictions: robbery ating presumption that a was a murder; (1) intent-to-kill thus, committed, relieving the State its (2) intent-to-do-serious-bodily-injury proving beyond a reasonable burden of murder; robbery. the existence doubt of a murder; and (3) depraved-heart the sec- Lankford’s.argument that As to (4) felony murder. 24-A misstates sentence Instruction ond disagree incorrect, or is we must the law require judges in fact did At first require- upon reading our of Idaho’s based actually have that defendant murder proof in the first for the of murder ments (i.e., premeditat- thought-out previously a degree. kill, ed) though probably the intent to etc., actually necessary. was never spite, (1987)provides in 18-4001 Idaho Code § (about 1550), English statutes Later part: ture, 536-540 Legislative Doc. No. kill an- intentionally it murder to made Glueck, in Hall & Crimi- wait; (1937),reprinted lying in by poisoning by or other (2d ed. Enforcement nal Law & Its seem to these two situations would but Moreland, 1958). The Law of also involving See a typical no more than cases be (1952); Stephen, A chs. 1-3 kill, Homicide the almost premeditated intent to England Law of History the Criminal meaning “malice afore- literal (1883).)1 thought.” case, ac- of the instant the facts

Under law, only robbery not cording to Idaho judges started to invent Thereafter the murder element of the supplies the malice there types some new of murder where a that murder charge, but also it makes kill. premeditated existed no intent in I.C. degree first as defined murder all, the defendant inten- First of when Therefore, 18-4003(d). the instruction tionally killed his victim in a heat of was not error. passion aroused in him the conduct of being whether the the victim—the issue assign Lankford’s second As for guilty of murder or defendant should be instruction, note on this we ment of error voluntary manslaughter judges considered instructions must be —the manslaughter required that decided that particular weight being together, without passion reasonable. the defendant’s be opposed to the others. given to one as Lankford, 113 Bryan

State v. The trial court 747 P.2d 710 Secondly, uninten- when the defendant must the State instructed tionally person killed another in the com- charged crimes be prove all elements for A felony mission of a where set fire —as This defeats yond a reasonable doubt. (arson) accidentally B to B’s house argument that under Instruc Lankford’s family a member of was .burned 24(a) sufficiently was not tion the State judges held this to murder death—the robbery beyond a rea obligated prove murder”), though (“felony the defendant jury was in sonable doubt because did not intend to kill at all and a fortiori proven robbery had to be structed that premeditate killing. did not beyond a reasonable doubt. See State Golden, 186 P.2d 485 judges say still continued 24(a) Because Instruction murder is committed one who unlaw- degree first of the law of correct statement fully kills another “with malice afore- did and because the court murder in Idaho thought,” adding the now however have to find jury the that it would instruct phrase “express implied,” or the word charged of the crimes all the elements “implied” covering the four situations doubt, we find beyond a reasonable proven literally ex- just described wherein there language of Instruction in the no error premeditated intent to kill. Mod- ists no 24(a). frequent- legislatures ern still courts in terms of “malice ly define murder III. implied,” by aforethought, express or to Add to the Trial Decision Court’s mur- they types mean the same of Aggravating List of Circum- State’s English judges the der as those which Mo- Deny Lankford’s and to stances recognized, including felony ultimately For Continuance. tion murder, murder, intent- depraved-heart that the trial court Lankford claims murder to-do-serious-bodily-injury with and interfered abused its discretion committed in an unreasonable murder his when it denied (The right to counsel foregoing history is con- his passion. prepare for a continuance to motion for Law Revision Com- tained N.Y.State aggravating factors mission, Legisla- previously undisclosed Communication 18-4002. § 1. See I.C.

868 provide suffi only do the statutes prosecu-

which the trial court added to the Not circumstances, aggravating proposed tion’s of factors. The two cient notice of list sentencing system provides factors were added factors enumerated Idaho’s but 19-2515(g)(2)(commission multiple prosecuting I.C. attor judge, the not the that § murders) 19-2515(g)(7) (felony sentencing. I.C. v. for ney, responsible State § accompanied 688, murder in- specific with the P.2d 113 Idaho 747 Bryan Lankford, being). Creech, 362, tent cause the death of a human 710, Idaho State v. 1051, den., (1983) 465 U.S. P.2d 463 cert. grant deny While a decision to (1984). 1327, Be 104 S.Ct. L.Ed.2d generally a continuance rests the within sentencing, provides judge cause Idaho for judge, discretion of the trial the discretion attorney’s sentencing recom prosecuting abridgment it is abused when results the that, just are to be viewed mendations right accused’s counsel. State judge mere The trial recommendations. Brown, 209, P.2d 98 Idaho makes the final decision as to what will be essence, argument In is that Lankford’s sentencing. and will not be considered prior defense counsel had no notice that Finally, 19-2515(d) provides that I.C. § going aggravat trial add court was two admitted trial shall con be “[e]vidence ing presented by factors to the list repeated sidered and need not at the be notice, prosecutor and com lack hearing.” sentencing bined court’s denial of his trial continuance, effectively motion for a possible ag- Lankford had notice of all counsel, abridged right Lankford’s gravating judge circumstances and thereby violating rights under the sixth properly any could utilize or all of them amendment to States Constitu United Thus, during sentencing. find we no error I, rights tion and his under art. 13 of and affirm the trial court on this issue. Idaho stat Constitution. Since subject aggravating ute supplies two IV. factors, required district judge give if them consideration circumstances Sentencing Participation Jury. — proven them. support were imposi asserts that the acknowledged This has I.C. partic with no tion 19-2515(f) (1987) gives fully sufficient sentencing pro ipation notice of the circumstances under which cess violates the Idaho Constitution. penalty may imposed the death and of Charboneau, State v. prerequisites governing such sentence. (1989), P.2d Court ruled: Bryan Lankford, 113 Idaho State v. In 1983 “that there is no 747 P.2d 710 also Lockett v. this Court held See Ohio, requirement federal constitutional (wherein sentencing pro jury participation in the 57 L.Ed.2d 973 gives warning the decision to court held that a statute fair cess and that have abettor); sentencing capital liability process, in the participation an aider and Florida, judicial 432 as contrasted with discretion sen and Dobbert v. U.S. (1977), tencing, policy 2290, 2300, L.Ed.2d 344 is within the determina 53 S.Ct. 97 existence tion the individual states.” State v. wherein the held Creech, 463, 670 on the statute 105 Idaho P.2d statute] [of 1051, (1983) U.S. 104 warning fair the de- 474 cert. den. 465 provides books as to 1327, (1984). 722 gree culpability ascribes S.Ct. 79 L.Ed.2d See which state 902, 900, murder). Sivak, light In of both also State v. act 396, (1983) Supreme 398 cert. 468 Court 674 P.2d den. Idaho and United States 3591, 887, 1220, 104 rulings, aggravating cir- S.Ct. 82 L.Ed.2d the fact that the 766, (1984); Fetterly, in v. 109 are documented I.C. State Idaho cumstances den., 19-2515(f) (1985) provided Lankford with the 710 P.2d 1202 cert. 479 U.S. § 870, 239, (1986); requisite 107 S.Ct. 93 L.Ed.2d 164 notice. jury sentenc right to Fain, 82, Amendment 774 P.2d Sixth Idaho State v. [116 sentence turns ing, (1989)]. In even where 1984 the United States 88, 477 U.S. at findings of fact.” specific sentencing upheld death Supreme Court In 2420, at 76. 91 L.Ed.2d 106 S.Ct. at Florida, judges. Spaziano v. by trial Rehnquist cited his Justice decision 447, 3154, 104 S.Ct. 82 L.Ed.2d 468 U.S. Prof “Sentencing proposition: for the fitt the circum necessarily consider courts 1, Art. has also held “that This Court selecting the in offense stances of an 7, not of the Idaho Constitution does § have and we appropriate punishment, in the require participation of a sentencing consistently approved capital case.” sentencing process consideration schemes that mandate 904, Sivak, 674 P.2d at 400. 105 Idaho at crime,____” 477 U.S. facts related to the Fain, 82, 774 P.2d See also [116 88, 2420, at 76. at 91 L.Ed.2d at 106 S.Ct. 252] The crux of the decision McMillan despite contends that Jaimi [Charboneau] issue the conclusion that the fact at 19-2515(g) decisions, since I.C. these § possession of a firearm— there—visible specific punishment to “links an enhanced for was not an element of the crimes “usurps findings,” it factual enumerated convicted, but defendants were deciding role in jury’s fundamental sentencing were instead “a factor the fact is so.” Richmond v. whether only the defendant play comes into after 1323, 8, Arizona, 434 U.S. 98 S.Ct. McMillan, guilty____” has been found Rehnquist, Justice sit- L.Ed.2d at 106 S.Ct. at 477 U.S. justice, appli- ting as a circuit denied an That is how we view L.Ed.2d at 72. deny- order suspension cation for of an listed in I.C. aggravating circumstances or, alternative, ing in the for a certiorari 19-2515(g). stay opinion of execution. In his Justice argument that the accept To Jaimi’s Rehnquist stated: determining whether must be involved Applicant argument raises a second exist, aggravating we circumstances petition rehearing that was not for aggra- conclude that the would have to Arizona Su raised either before the in I.C. vating circumstances listed petition preme or in his earlier degree of first 19-2515(g)are elements argues that Applicant for certiorari. unable to reach that murder. We are Sixth, the Arizona statute violates the listed in conclusion. The circumstances Eighth, and Fourteenth Amendments clearly the statute are circumstances failing provide jury input into sentencing and not ele- be considered in aggra the determination of whether It is not degree ments of first murder. vating mitigating circumstances judge, of a for a instead unconstitutional jury input do or do not exist. Such any of the jury, to determine whether under appear required would not to be listed in the aggravating circumstances decision in this Court’s [v. Proffitt exist. statute Florida, 242, 96 428 U.S. case is aspect in this opinion Our (1976)]. L.Ed.2d 913 the Ninth changed by the decision of Ricketts, 98 U.S. at 54 L.Ed.2d 434 U.S. 865 F.2d in Adamson v. Circuit correctly points (9th Cir.1988). out at 36. Jaimi In Adamson presented penal- to the entire this issue was not held Arizona’s death Ninth Circuit Court, only Rehn- in violation sentencing but to Justice statutes to be ty reargu- During argues that quist. Jaimi McMillan of the sixth amendment. im- to determine what ment of this case Pennsylvania, opinion (1986) might have on our 2411, supports pact 91 L.Ed.2d 67 Adamson state of here, general for the interesting this issue. It is the solicitor position on sig- no acknowledged that there is Rehnquist wrote the that also Justice Arizona the McMillan, difference between in- nificant opinion for the Court in sentencing and statutes penalty no death cluding “that there is the statement 870 Nevertheless, cept qualifying

those of Idaho. we are that our statute adds the correctly depravi- not that phrase, “manifesting exceptional convinced Adamson requirements states the of the sixth ty.” amendment on this issue. in its Supreme The Florida Court noted sentencing in capital Judicial cases does judge that the decision “the trial found Spazi- violate the sixth amendment. espe- the were circumstances of offense Florida, 447, ano v. 468 U.S. 104 S.Ct. atrocious, cruel, heinous, cially and 3154, 82 L.Ed.2d 340 Adamson secondly, that the was found defendant attempts distinguish to Spaziano involving previously of convicted felonies ground Spaziano in nev- “the Court per- the use or threat violence to particular er reached contention State, Spaziano son.” 1119 393 So.2d cap- raised: Arizona’s Adamson has (Fla.1981). certiorari the United On judge sentencing requires ital statute States Court held: to determine elements of the offense capital sentencing The fact that a charged, taking ele- thereby this factual respects a significant like trial in the to jury’s ment out in violation hands however, Jeopardy Clause, the Double F.2d Sixth Amendment.” 865 at does that it a trial not mean is like in disagree. 1028. We respects significant to the Sixth Spaziano the Court noted guarantee tri- Amendment’s of a capital sentencing Florida statute that al____ sentencer, judge The whether sentencing at directed the was issue jury, obligation or has a constitutional statutory judge “to determine whether unique to evaluate the circumstances out- aggravating circumstances were of the individual defendant and the weighed statutory mitigating circum- life is final. sentencer’s decision for 4, at n. 104 S.Ct. stances.” 468 U.S. Rumsey, U.S. Arizona v. [467 at L.Ed.2d n. 4. 3157 n. at 343 (1984)]. 81 L.Ed.2d impor- Florida similar in the statute was despite unique as- important, More its aspects portions those tant to I.C. pects, sentencing proceeding capital a relating penalty sen- to death § same fundamental issue involves the tencing. provided The Florida statute sentencing pro- any involved in other weigh sentencing judge that the should ceeding appro- determination of the —a aggravating mitigating circum- priate punishment imposed on an to be a judge imposed stances. If the sentence omitted, except] individual. [Citations death, required judge set York, New Williams v. in writing “findings upon forth which the 1083-1084, 247-249, sentence of death is based as Amend- L.Ed. 1337 The Sixth (a)

facts: cir- aggravating That sufficient thought guar- ment never has been in sub- cumstances exist as enumerated a determination of right antee (5), That insuffi- section there are that issue. out- mitigating cient circumstances 454, 104 at S.Ct. at weigh aggravating circumstances.” were L.Ed.2d at 347. These comments 72-724, Fla.Laws, ch. 921.- Sec. considering made the Court 141(3)(b). aggravating circumstanc- sentencing by judge under a in the law at issue es enumerated Florida substantially to our stat- statute similar re- Spaziano were similar some cir- findings aggravating ute spects I.C. to those contained This cumstances similar those here. 19-2515(g). Significantly, one of the inherently convinces us that in Florida aggravating circumstances rejected premise of considered and especially capital felony was was: “The the Ninth that a heinous, atrocious, Circuit Adamson: 1972 Fla. cruel.” requires 72-724, 921.141(6)(h). capital sentencing statute that Laws, Sec. ch. cir- judge aggravating to determine substantially This is the same I.C. here, element takes this factual that is issue ex- cumstances 19-2515(g)(5) jury’s rights hands in of the Lankford’s Miranda nor did he in- out violation sixth amendment. form Lankford that his would statements proving aggra- be used as evidence 145-147, Idaho at 774 P.2d at 315- necessary vating circumstances for the penalty. Dr. did Lank- death Estes advise For the reasons enunciated in Charbo ford that their conversation would be neau, we hold that Lankford was not enti any doctor/patient privilege. subject jury participation sentencing tled to in the allowing testify Prior to Dr. Estes to about position process.2 strengthened by Our Lankford, his interview with the trial court recent United States Court’s questioned to assure that disclo- Dr. Estes — Florida, opinion in Hildwin v. pass sure would constitu- interview -, 2055, 104 L.Ed.2d 728 tional muster. The court found that the where the Court concluded that “the Sixth place examination took the consent with require spe Amendment does not that the counsel, approval no- after written findings authorizing imposition cific counsel, tice to and that Lankford’s com- by the sentence of death made psychiatrist ments were made volun- jury.” tarily, knowledge right of his to re- silent, knowledge any main and with V. against statements he made could be used him. testimony of the Court Appointed Psychiatrist. privilege The fifth amendment Lankford claims that the court violated against self-incrimination and the sixth rights guaranteed by his the fifth and four- right apply amendment to counsel to custo teenth to the amendments United States prior psychiatric dial exams conducted Constitution and Article 13 of the Ida- prior sentencing as well as those conducted compelled him ho Constitution when it Adequate protection to trial. of these against psychiat- be a witness himself at a rights requires examining psychia ric examination conducted Dr. Estes. patient. trist Mirandize the Estelle v. Lankford also claims that the court’s order Smith, subjected psychiatric him to the examina- Estelle, after the L.Ed.2d counsel, thus, tion without assistance of State announced its intention to seek the violating his sixth and fourteenth amend- trial court ordered a penalty, rights under the ment United States Con- psychiatric to determine Es examination stitution, rights and his under Article competency to stand trial. The ex telle’s 13 of the Idaho Constitution. jail conducted where amination was May examining doctor being On the district court or- he held. was Estes, psychiatrist, competent dered Dr. to examine determined that Estelle report upon he then tried and con psychi- Mark Lankford and stand trial and was sentencing proceeding separate atric medical condition. Dr. A Estes followed victed. jury, required by questioned the court order and Lankford in was then held before The doctor who had conducted County attorney the Ada Jail. Lankford’s Texas law. psychiatric examination testi present during questioning. pre-trial was not Lankford, the State. The determined Following his examination of Dr. fied for imposed. findings the death should be Estes submitted his to the court. ultimately way made its findings he testified as to those at The case Later sentencing hearing. Dr. federal district court writ of habeas Estes testified Lankford, that, corpus the death sentence was va prior interviewing he where the court found constitution orally Rights. administered the Miranda cated because testimony admitting the doctor’s Dr. Estes did not obtain a written waiver of al error case, A, Huntley Appendix as his dissent in this 2. Justice dissents from this Part IV and eto as Charboneau, adopts appended his dissent in her- phase. guar- The fundamental penalty at the United States observe constitutional antees. Appeals Court of affirmed. The case was appealed then to States United Smith, 462-463, Estelle v. 451 U.S. at The stated: Court which affirmed. Court S.Ct. at 1872-1873. Amendment, applicable The made Fifth advising the As for method of a through to the states the Fourteenth suspect his Miranda or defendant of Amendment, per- that commands “[n]o Rights, obtaining of a waiver of those and compelled any son shall be crimi- ... rights, requirement there is no that either against nal to be a witness himself.” case writing. be done in The U.S. Constitution The of this basic constitutional essence warning require not does written or waiv requirement “the that the principle is er, required has and Idaho not a written proposes State which to convict and warning requirements or waiver since such produce the evi- punish an individual from 19-853 in 1984. were removed I.C. § against independent him the dence did Accordingly, Dr. Estes not violate officers, simple,, not the labor of its rights constitutional he Lankford’s when forcing his expedient cruel it from of orally of his advised Lankford Miranda Connecticut, lips.” own Culombe v. Rights accepted an oral waiver. Since and 581-582, S.Ct. U.S. properly Lankford Mirandized and was announcing (opinion L.Ed.2d infirmity his there was no formalistic with added). See judgment) (emphasis waiver, only question is which remains Comm’n, Murphy also voluntary, was whether Lankford’s waiver Waterfront 52, 55, 1594, 1596-1597, S.Ct. intelligent. knowing Lankford claims and (1964); Griswold, E. The 12 L.Ed.2d 678 voluntary, knowing his was not that waiver Today 7 Fifth Amendment not intelligent because Dr. Estes did used him that his disclosures could be tell availability has that “the held during evidence for the State sentenc privilege of does Amendment] [Fifth he ing. disagree. very fact that We upon type proceeding of not turn put on notice was Mirandized Lankford invoked, protection upon which its is but against used what he said could be of the or admission the nature statement sentencing hearing. This during him re exposure it invites.” In and the Dr. told was furthered when Estes notice Gault, 1, 49, 87 S.Ct. doctor/patient privilege case, (1967). In 18 L.Ed.2d 527 this disclosures. apply not Lankford’s would penalty potential death was a ultimate of attorney in Additionally, Lankford’s respondent told the consequence of what process. The court sent de volved examining psychiatrist. Just as court written notice fense counsel de prevents Fifth Amendment criminal “ psychiatric prior examination ordered deluded being from made ‘the fendant ” conducted, and informed time it was conviction,’ Cu instrument his own that there was reason defense counsel Connecticut, supra, lombe v. U.S.] [367 Lankford’s mental condition believe quoting 2 Haw [81 at] sentencing. significant factor at would be a (8th kins, ed. Crown 595 Pleas object point. at this Defense counsel did not being 1824), as well from protects it him noted, although it is not A factor to be of his instrument” made the “deluded outcome, is that Dr. Estes’ pivotal to the execution. own presented alleged have testimony is not distinguish 'no basis We can discern any facts new about with phases of guilt penalty between the the new of the crime—rather commission so far respondent’s capital murder trial only psychological opin material dealt Amend- the Fifth protection as the testimony. ion (Footnote concerned. privilege ment properly informed Because Lankford was omitted.) gravity the deci- Given knowingly voluntarily, rights and he phase, the sion to made at the rights those obligation intelligently waived State is relieved Trial, 34, New knew that the Rule attorney Idaho Criminal Lankford’s because on of a part: “The court motion to states going take psychiatric examination was grant trial him if may a new admitting Dr. defendant not the court did err place, justice.” of This required in the interest the sentenc- psychiatric testimony Estes Court, 110 Idaho Scroggins, v. hearing. State ing stated: P.2d of The of whether interest question VI. trial under the justice requires a new is di- particular of case circumstances a The Trial Denial of Lankford’s Court’s of the trial the sound discretion rected to Trial. Motion for New Second court; the trial court’s decision and argues the trial court Lankford next that not absent an thereon will be disturbed his motion for erred when it denied second (Citation omit- of that discretion. abuse newly upon new trial which was based dis- ted.) and the recanted testimo- covered evidence Although 19-2406 does I.C. § witness, key Bryan Lank- ny of the State’s specifically new trials on the not address ford. testimony opposed basis recanted as of newly was a let- discovered evidence evidence, appar discovery of new Lankford, by Bryan written which dis- ter opinions legislature ent of the intent closed that he had lied when he testified exemplify fact by rendered this Court murders, that Mark had committed the testimony a form new that recanted is actually it had been committed that he who by is thus covered subsection evidence and testimony the murders. The recantation of judge his or The trial does not abuse hearing evidentiary occurred at on granted new trial her discretion unless a is trial; Bryan Mark’s second motion for new for a that not delineated in the reason is had lied trial testified that he at Mark’s grant deny code or unless the decisionto that his involved in the brother not manifestly contrary a new trial killings. actual justice. interests argues Mark Lankford now that whether Appeals not As the Idaho Court applies granting this Court the test for a Lawrence, ed in State v. trial newly new based on discovered evi- (Ct.App.1986), P.2d there are two dif granting dence or the test for a new trial determining judicial approaches ferent on testimony, based recanted a new trial justice require whether the interests of only granted should be direct because granted a new trial be the basis evidence linked Mark with testimony. recanted Bryan the Bravences’ murders was Lank- re- to treat the approach One has been original testimony. ford’s trial newly as a form of discovered cantation sought When new trial is We note from the outset that while evidence. a evidence, upon moving party grant new such decision of whether to a trial satisfy has become known discretionary judge. is a matter trial must what for the test, 19-2406(7) (1987), “Berry” multi-part test. This Idaho Code limits the State, Berry may instances in named after case discretion be (1851), Georgia 511 the re- includes exercised.3 trial portion When a motion a new of this code duced at trial. section relevant to the newly-discovered upon ground case at bar reads: is made evidence, produce must at the the defendant 19-2406. Grounds for a new trial. —When support hearing the affidavits of the thereof against verdict has been rendered the defen- expected evidence is whom such may, application, witnesses upon the. dant court required by given, and if time is grant following only: in the new trial cases procure such affidavits the defendant hearing may postpone the of the motion for evidence 7. When new is discovered material as, defendant, length under all the circum- of time could such which he case, may seem reasonable. diligence pro- stances reasonable have discovered and (1976); see 50 L.Ed.2d proba- quirement that the new evidence WRIGHT, 557.1. produce generally different result. bly would adopted in substance Berry has been Idaho, Berry relationship between federal courts. 3 C. most state and explored thor- has not been and Larrison WRIGHT, AND FEDERAL PRACTICE court, However, Supreme oughly. our (2d CRIMINAL PROCEDURE: adoption mentioning or its Berry without WRIGHT). Ed.1982) (hereinafter It was ap- in Drapeau, has cited Larrison Supreme in approved by our Court State 110 Idaho proval. Scroggins, v. State 685, 551 P.2d 972 Drapeau, (1986), the 716 P.2d 1152 three explicitly noted Larrison’s to treat approach A has been elements. The court then reformulated second testimony problem as a distinct recanted Larrison as follows: newly evidence. Per- from discovered Larrison, [Ujnder holding it testimony integrity jured affects appropriate circum- would seem that way judicial process a that over- stances, an where a defendant submits WRIGHT, does not. looked evidence government a witness affidavit Moreover, rigorous while a 557.1. his testimo- which the witness recants obtaining trial standard for a second ways dis- ny specifies and in what he as an upon may justified evidence be new ways he honestly testified and in what evi- parties incentive for the to marshal would, opportunity testi- given if trial, present it the first dence and to again, change testimony and fy parties no such incentive to need showing where a defendant makes a perjury. The seminal decision combat changed testimony may be that such establishing a distinct test recanted finding guilt or to a of his material States, testimony is Larrison v. United innocence, a trial should be held. new (7th Cir.1928). There, as in 24 F.2d 82 (em- at 1157 110 Idaho at 716 P.2d case, government witness present added). phasis given he had announced after trial that 151-152, Lawrence, 730 P.2d 112 Idaho at testimony. false The Larrison 1071-1072. granted held that a new trial should be case, court, upon the trial In the instant (a) reasonably court is well when “[t]he competent evi- consideration of substantial testimony given by a satisfied that the dence, original testimo- determined that the false,” (b) material witness is “[t]hat recantation ny and that was correct jury might have reached a without it the court, part not believable. The trial was conclusion,” (c) different “[t]hat findings opinion on this of exhaustive party seeking trial taken the new was issue, part: noted testimony surprise the false when Bryan very to note that It is crucial given to meet it or did and was unable of his trial testi- recantation Lankford’s falsity after the not know of its until under circumstances made mony was (Footnote (Emphasis original.) trial.” to its relia- grave doubt as raise a omitted.) bility. any Those fail to discern courts which functional difference between the recan of the files and upon a review Based the dis testimony tation of trial a consideration herein as well as records covery applied of new trial evidence after given by Bryan Lank- testimony E.g., Berry test in both situations. second motion for a at Defendant’s .ford 607 F.2d 840 Krasny, United States v. trial, reasonably well this Court new Cir.1979) (9th den., cert. testimony given by satisfied 63 L.Ed.2d 775 motion for Bryan Lankford at second However, apply most courts now was false and furthermore a new trial testimony. test to recanted Larrison testimony given by Bryan Lank- that the F.2d E.g., Stofsky, United States v. concerning (2d trial Cir.1975), at the Defendant’s ford cert. den. 429 U.S. participation s may of the Defendant in the of the defendant consti- violative killing rights. of the Bravences was true. tutional opinion It is the of this Court that it Analysis. B. cannot be said that the recantation rea- sonably could following specific post-trial affect outcome of the The are the Furthermore, trial. this Court does not events Lankford claims the trial evidence judge’s attitude, prejudicial conclude that evidence of the recantation his abandon- probably produce would ment judicial analyze different ver- of his role. We each Finally, upon dict. based the fore- turn.

going, not, the recantation evidence does 1. to Defen- The trial court referred justice, in the require interests of that a Trial, dant’s sen- Motion for formal New granted. new trial be tencing and determination of sentenc- Thus, inquiry our go need no further since ing as petty motions. the record demonstrates no manifest abuse problem discretion in This has adequately the trial been court’s denial of a explained being new trial. by caused an error in

the transcription of the record. The court reporter mistook the VII. word “pending” for “petty.” Imposition of the Death Sentence.

Lankford claims The trial court prosecutor that the called the trial court im- posed the as a in support witness arbitrarily posi- state’s and un- der the tion passion influence of at Defendant’s first Motion for prejudice New in direct hearing. contradiction Trial of the strictures of 19-2827(c)(l). I.C. § allegation Neither nor the

record prosecutori indicate that this was a Legal A. Principles. al prejudicial by judge. or act trial appears asking Lankford to be that this begin analysis We our of Lank- prosecutorial infer that this was a by noting ford’s claims following points by evidencing action the trial court bias. right of law. The process requires to due However, the record establishes that the impartial an judge. Lopez trial v. Vander trial court acted in the clarifying interest of water, (7th Cir.1980). 620 F.2d testimony. judge may A disqualified not be preju for dice unless it is prejudice shown that the permitted 3. The trial court the testimo- prejudice “a against is directed ny of Dr. Estes as a court witness even party litigant, and is of such nature though the state did not list him as a character as improbable would render it potential witness. party that the could have a impar fair and Contrary allegation, to Lankford’s tial particular trial pending.” case ample defense counsel had Dr. notice that Bell, Bell v. 18 Idaho 111 P. 1074 might Furthermore, Estes testify. (1910); Waterman, State v. record does not the trial establish that may 210 P. 208 The district court any prior court had knowledge as to which properly participate in the examination party by testimony. would be benefited purpose “clarifying witnesses for the We find no point. error on this evidence, controlling orderly pre evidence, sentation of the confining counsel questions 4. The trial court asked of Dr. evidentiary rulings, preventing un sentencing provide Estes at in order to repetition testimony.” due United report. foundation for introduction of his (9th Allsup, States v. 566 F.2d Cir. 1977) Malcolm, questions The trial court’s (quoting were United States (9th Cir.1973)). proper designed 475 F.2d How to ensure that Thus, ever, judge expert’s testimony was prosecutorial acts the trial admissible. interrogating Bryan actually asked for the questions these were striking testimony. rights. should protection of Lankford’s It judge asked Dr. be noted that the trial examined several wit- 7. The trial court sentencing questions at the Estes these for New Trial nesses at the Second Motion this, during Because of hearing, hot trial. testimony hearing attempt to elicit an interfering with the danger there was no position. favorable to the State’s case, and it was jury’s determination of the (in important judge addition reviewing are Upon the record we rights), securing constitutional Lankford’s purpose that the of the trial not convinced properly acquire necessary information was an court’s examination of witnesses sentencing. This was done without er- attempt testimony to elicit favorable to the ror. However, if the mo position. even State’s true,, alleged tivation Lankford were supplemented 5. The trial court the list specify the exact inci Lankford failed to aggravating factors be considered at alleged misconduct. As a dents of this sentencing sponte and sua refused to result, defense coun he asks us to do what grant im- a continuance to meet do, we cannot “look into sel said its brief posed factors. if and mind to see Judge Reinhardt’s heart appropriateness the defendant or prejudiced the court he was toward aggravating considering by the two additional circumstances enflamed fully allegation without factors is discussed herein in Section this crime.” We find III, supra. aggravating Those factors merit. charged part parcel of the crimes were suggested court witnesses' trial sponte listing of and the trial court’s sua to the state at Second and motions of a

them for consideration is not evidence hearing. Trial for New Motion constitutes prejudicial attitude but rather proper performance of its the trial court’s counsel allegation defense In this statutory duties. specific points identify to again fails once allega support general in the record to sought 6. The trial court to cross-exam- Furthermore, argue fails to Lankford tion. the second Motion Bryan ine Lankford at any prejudice that resulted establish lengthy examinations despite for New Trial they in fact suggestions if were from these Failing get to a desired parties. both made. response, the district court struck testi- mony Bryan Lankford. VIII. say It is unfair to that the trial Aggravating Circumstances. “sought Bryan to cross-examine” arguments pertain- two Lankford makes Lankford at the second motion for new aggravating circumstances. ing to the simply Bryan trial. The court asked Lank- argues aggravat- that the First, Lankford questions purpose for the ford of clarifica set forth I.C. ing circumstances absolutely proper. tion. This was As stat fot unconstitutionally void 19-2515 are above, granting ed of a new trial is a argument second vagueness. Lankford’s discretionary decision made the trial aggravating factors are if the is that even

judge. In a situation where a defendant applicable, there was not constitutional and requests a new trial of recanted because support finding of evidence to sufficient testimony, the trial court must be satisfied in this their existence case. original testimony that the false and was testimony judge that the new if is true A. grant Accordingly, a new trial. it is Aggravating Constitutionality of vital judge that the trial to ask be allowed Circumstances questions gath for clarification and for the ering during aggra of information Lankford asserts that the hearing on a vating motion for new espe- trial. The court did not err factor that “their murder was support was sufficient heinous, cruel, The evidence manifest- dally atrocious or aggravating statutory the aforementioned ing exceptional depravity,” is unconstitu- factors. Cartwright, 486 Maynard tional under 100 L.Ed.2d testimony that 1. Doctor Estes’ In Maynard, the U.S. per aggressive was an anti-social Lankford circum- aggravating held that with sonality prone to combined violence stat- penalty stance of an Oklahoma convicted the fact Lankford heinous, especially

ute referred support to murders lends sufficient two was unconstitu- atrocious or cruel murders propensi finding he had a court’s trial pursuant Eighth vague tionally murder. and to commit ty for violence to the United States Constitu- Amendment in which 2. The manner brutal aggra- these The Court reasoned that tion. bludgeoned of his two the skulls adequately failed to inform vating factors clearly supports the trial court’s victims of what must be found the sentencer especially finding that the were murders impose penalty the death order to heinous, manifesting ex atrocious or cruel ability thereby left the sentencer with the depravity. ceptional arbitrary impose the death in an 3. The the Bra manner which capricious manner. together brutally vences were murdered is, however, important There an distinc- they the fact that killed for were ag- tion between the Oklahoma and Idaho reason that the Lankfords wanted mere gravating circumstance statutes. The dis- finding support their van court’s steal jury sentenc- tinction is that Oklahoma has ut the murders were committed with ing judicial sentenc- while Idaho adheres to disregard for life. ter human aggra- ing capital murder These cases. aggravat- The record establishes that vating circumstances terms of art that are properly utilized ing factors were commonly among the mem- are understood evi- and that was sufficient there result, judiciary. bers of the As a findings. support the trial court’s dence potential application for inconsistent that jury sentencing a result of exists as IX. judge eliminated where sentences. Death Sentence. Proportionality argument rais The final B. sentence is appeal is that the death es Sufficiency of the Evidence to other compared when disproportionate Lankford asserts that there was insuffi- penalty was or in which the death cases support evidence to three of the trial cient brings this imposed. Lankford was not findings of statutory aggravating court’s 19-2827 which argument pursuant to I.C. § (1) argues He there is insuf- factors. that: shall be all sentences requires that death support finding ficient evidence Idaho by the Court reviewed deter propensity specifically he had a commit murder and shall that the Court and continuing (2) society; threat that mine: was a heinous, ex-

there was insufficient evidence of of death is (3) the sentence Whether disproportionate to the manifesting excep- or cruel acts or atrocious cessive eases, considering imposed similar set depravity apart tional this from other crime the defendant. and both degree murders in which the death first (3) imposed; that there penalty was not and imposed reviewed the sentence We have support the was insufficient evidence to im- compared it with the sentences finding murders exhibited court’s making capital posed in other cases.4 (1) disregard for human life as set an utter comparison we have considered: 405, for, Osborn, of, 102 Idaho the crime forth State v. nature motive committed; (2) 419, nature of the 187 the heinous 631 P.2d 688, Lankford, Bryan 747 P.2d 710 State Idaho Those cases we have considered include: v. 113 878 Tern., SCHWARTZMAN,

crime; Judge Pro and character of the nature the defendant to determine whether concurring specially. proportionate just. Af- sentence was II of specially I to concur Part write thoroughly examining the record and ter Assuming that In- opinion. the court’s factors, evaluating nothing find these we 24(a) incorrect struction No. was and is an the sentence of that would indicate law, I misleading or statement of Idaho against imposed Lankford was dis- instruction, giving find the of such when proportionate unjust. The comments light viewed in the and context of all the Bryan this made relative to Lank- instructions, undisput- other as the as well 704, ford’s sentence at 113 Idaho at 747 underpinnings giving ed factual rise to applicable equally P.2d 726 are to this case, beyond any and all is harmless error case. reasonable doubt. See Delaware v. Van judgment of conviction and the sen- Arsdall, 673, 1431, 89 imposed are affirmed.

tence the fact that the L.Ed.2d 674 Given properly instructed on the statu- BAKES, C.J., concurs. Murder, tory definitions of Malice and Rob- JOHNSON, J., in Parts concurs bery, applicable as well as the burden of VIII(B), specially in I-VII and concurs crime, proof and elements of the it is incon- VIII(A) Parts and IX. ceivable that a could be mislead into a SCHWARTZMAN, Tern., J. Pro “presumption” that malice is established as through concurs in Parts I and III IX a matter of law from the mere fact that an and concurs in the result in Part II. killing place during unlawful took SHEPARD, J., perpetration robbery. crime sat but did not Moreover, .analyzed participate untimely due to his death. this instruction can be Johns, 873, 881, (1976); Hokenson, (1987); State v. State v. 112 Idaho 736 P.2d L.Ed.2d 99 Hatton, 163, 283, (1974); (1987); Stuart, State v. State v. 110 Idaho Idaho 527 P.2d 487 (1974); (1985); Windsor, P.2d 64 State v. State v. 110 Idaho 95 Idaho P.2d 833 410, Standlee, (1974); (1985); Scroggins, 96 Idaho 525 P.2d 360 716 P.2d 1182 State (1973); (1985); Foley, 95 Idaho 506 P.2d 119 716 P.2d 1152 State v. State v. Beason, (1985); Fetterly, Idaho 506 P.2d 1340 710 P.2d 1202 State v. Atwood, 124, Beam, 616, (1973); P.2d P.2d State v. 95 Idaho 504 State v. 109 Idaho 710 526 Sanchez, 125, 358, (1972); (1985); Aragon, P.2d State v. 94 Idaho 483 State v. 107 Idaho 690 397 323, 273, Gomez, (1971); (1984); Bainbridge, v. 94 Idaho v. 108 Idaho P.2d 173 State 293 State Dillon, Paradis, (1971); (1985); Idaho Idaho 487 P.2d 686 State v. 93 698 P.2d 335 State v. 106 942, 117, 698, (1970), den., (1983); Gibson, 471 P.2d cert. 401 U.S. 676 P.2d 31 State v. 106 553 54, Sivak, 947, (1983); (1971); L.Ed.2d State v. Idaho 675 P.2d 33 State v. 105 91 S.Ct. 28 223 900, Creech, 727, (1970); (1983); Radabaugh, 471 P.2d Idaho 674 P.2d 396 State v. 93 Idaho 582 362, 286, (1983); Rodriguez, Idaho 460 P.2d 711 105 Idaho 670 P.2d 463 State v. State v. 93 140, 4, Jiminez, (1983); (1969); Major, v. Idaho 456 P.2d 105 Idaho 665 P.2d 703 State v. State 93 493, 87, Mitchell, (1983), (1969); State, King 104 Idaho 660 P.2d 1336 784 v. 93 Idaho 456 P.2d 152, den., 934, 2101, Gonzales, (1969); Idaho 438 cert. 461 U.S. 77 254 State v. 92 629, Carter, (1968); (1983); Chaffin, v. Idaho P.2d State v. 92 Idaho L.Ed.2d 308 917, State 103 897 State, Olin, (1968); (1982); Carey 91 Idaho P.2d v. 103 448 P.2d 243 706, v. 655 434 State Koho, 391, (1982); (1967); State v. 91 Idaho P.2d 203 State Stor 429 P.2d 836 648 v. 450, (1967); moen, 83, (1982); An P.2d 1004 State v. Idaho 645 P.2d 317 State Idaho 423 103 stine, 169, (1966); Osborn, 405, (1981); v. 418 P.2d 210 State P.2d 187 91 Idaho v. 102 Idaho 631 341, (1964); 163, Gish, P.2d 342 State v. Griffiths, 87 Idaho 393 101 Idaho 610 P.2d 522 State v. 322, (1961); 713, Padilla, State (1980); Clokey, Idaho 364 P.2d 159 P.2d 83 State v. 101 Idaho 620 395, (1958); Burris, Fuchs, 341, (1980); P.2d 265 Idaho 331 597 v. 80 286 v. 100 Idaho State 266, Snowden, 883, (1979); Needs, Idaho 313 P.2d 706 State v. 79 P.2d 227 State v. Idaho 99 Buchanan, 365, (1957); (1979); 252 State v. 73 Idaho Lindquist, Idaho 591 P.2d 130 State v. 99 394, Owen, 766, (1953); (1979); v. 73 Idaho Bradley, P.2d 524 State 589 P.2d 101 State v. 98 918, (1953) (considered only (1978); in of P.2d 203 terms Idaho 575 P.2d v. Birrue 253 1306 State 631, ta, (1977); penalty imposed); committed and over 98 Idaho 570 P.2d State v. crime 868 782, Allen, (1977); point Shep ruled on substantive law in State v. 98 Idaho 572 P.2d State 885 227, herd, (1971); Ward, 571, (1977); Idaho 486 P.2d 82 State v. v. 98 Idaho 569 P.2d 94 916 601, Pettit, Gerdau, 516, (Ct.App. 104 Idaho 661 P.2d 767 State v. P.2d 1161 96 Idaho 531 199, Powers, 833, 1983); (1975); Fenley, v. 103 Idaho 646 v. P.2d State P.2d State 96 Idaho 537 1982). (1975) den., 1089, (Ct.App. cert. S.Ct. 441 1369 423 96

879 competent legislature to for the predicate where facts conclu- It is as one the malice, felonious homicides shall sively prescribe so no rational what establish murder, and to find defendant commit- deemed define jury could that the so policy acts but did of law to degrees. ted the relevant criminal It is the aforethought. felonies, is also malice It in or at- persons engaged without hold inconceivable, felonies, as a matter of law and both responsible tempts to commit fact, helpless that two innocent and victims of feloni- consequences for all the their death, bludgeoned deliberately can be acts, consequences such ous whether other, by another one after the human be- the in- not; or definitely were intended does not ing who somehow exhibit felony standing in tent to commit a malice, possess requisite criminal either ordinary in cases place malice of implied. facts express or and reason- murder. drawn therefrom are able inferences to be 17, 18, 2 People v. 2 Idaho Mooney, P. overpowering conclusive to con- so as added). (emphasis beyond any harmless shadow stitute error statute, reading Instruc- Under v. compare Rose of a doubt. See correctly 24A tion No. instructed the Clark, 3101, 570, 478 U.S. S.Ct. attempted proof perpetration of the (1986). my opinion, Instruc- L.Ed.2d 460 robbery perpetration would stand 24(a) superfluous; merely tion is proving degree place of malice first worst, very simply permits it murder. infer malice from defendant’s conduct. persuade attempts us that Finally, specifically I write to concur incorrect, the instruction because was opinion. Part IX of this The sen- Court’s his brother’s case this Court referred proportional imposed directly tence robbery commission “a substitute im- and commensurate with sentence State proof specific premeditation.” v. Lankford, posed and State affirmed Lankford, P.2d 113 Idaho 688 at 747 P.2d 710 at vacated, (1987); 1051, 108 The facts of this case (1988); 100 L.Ed.2d journey af depict a into the of dark- “heart firmed, Lankford, State v. ness,” a descent evil. the soul of into reading A 775 P.2d 593 careful Judgment proportionate Death is opinion case indicates that in that society’s committed acts and is civilized considering what the Court was there just and ultimate condemnation of pre distinction malice and not a between perpetrator of this evil. Instead, the Court was consid meditation. JOHNSON, Justice, concurring argument ering of Lankford’s brother specially. felony relieved that a murder instruction proving of intent. The instruc the State opinion I concur with write the lead may be in a to the tion found footnote (Instruction II only to comment on Parts 5, at 113 694 n. 747 P.2d opinion. Idaho at 24A), VIII(A) Ag- (Constitutionality No. of believe, erroneously, n. The I 716 5. Court Circumstances) gravating (Propor- and IX “that that the did not state held instruction tionality). killing perpetration robbery in of a is mal 695, 747 per se.” Id. ice P.2d at NO. 24A. INSTRUCTION interpreted the as The Court instruction felony provision in murder contained im advising “that malice can be 18-4003(d) vir- has come down to us I.C. § Id. in plied some situations.” unchanged In tually days. since territorial view, proof degree first mur- my of a Territory Supreme of the of 1882 18-4003(d) not re- felony der under I.C. does policy behind Idaho described the express quire proof premeditation or murder and noted the role the commis- is an Premeditation element of of one of the felonies malice. sion enumerated proof degree degree first murder under I.C. plays murder: first (“All OF THE 18-4003(a). PROPORTIONALITY murder ... which is wilful, DEATH perpetrated by any kind of deliber- SENTENCE. premeditated killing ate and is murder I with the conclusion While concur degree.”) supplied by first Malice against imposed the sentence of death perpetration attempted perpetration or un- disproportionate not Lankford was of one of the enumerated felonies. This in other just compared to the sentences supported by conclusion is v. Parad- State cases, rote capital object I recent is, 117, 125, 31, 106 Idaho 676 P.2d supposedly citation of the cases we have Windsor, 410, and State v. 110 Idaho many considered. some of the cases While 1182, (1985). 716 P.2d In Parad- known, inapposite cited are well others are is we said: particularly and some are I ob- outdated. rule, felony Under the murder a defen- ject to of cases in the citation participates robbery in a can be dant who penalty E.g., death was not at issue. State any person the death of held liable for Stormoen, P.2d 317 v. during killed the commission of that rob- (1982)(indeterminate on life sentence based bery, regardless the individual defen- murder). Also, plea degree to second dant’s intent that a death occur. half the cases cited sen- over involve 24A challenges Instruction as tences that were handed down before our violating Mon the rule of Sandstrom v. present sentencing was en- statute tana, myself, personal- acted in 1977. For I have has L.Ed.2d 39 Substantial doubt ly that I reviewed the cases since 1977 validity felony been cast on the murder comparable sug- I believe are to this one. E.g., convictions under Roth Sandstrom. gest practice of that we discontinue the Sundby, A Felony-Murder Rule: routinely citing point cases which are not Crossroads, Doctrine at Constitutional and which are outdated. 70 Cornell L.Rev. However, recently as June “A” Appendix Wyoming pointed out: Court of felony jurisdiction “No has held that a mur HUNTLEY, Justice, concurring and der statute the rule of violates Sandstrom dissenting v. State Charboneau ]. [in State, Montana,____” Murray v. v. support I the death While (Wyo.1989). P.2d 1989 WL 67582 majority opinion, I concur in the bulk of the suggest present respectfully that Idaho’s OF AGGRAVAT- CONSTITUTIONALITY capital sentencing procedure is unconstitu- ING CIRCUMSTANCES. tional because it removes the from its opinionupholds The lead the constitution- fact-finding pro- constitutional role. Our ality aggravating factor that “the cess violates the federal constitution heinous, especially murder was atrocious or Ricketts, v. reasons stated Adamson cruel, manifesting exceptional depravity,” (9th Cir.1988) and violates 865 F.2d 1011 judges, ground juries, on the im- I the Idaho Constitution for the reasons pose death sentences Idaho. The consti- Creech, have articulated State tutionality upheld of this factor was and State v. Idaho 670 P.2d grounds Charboneau, in other State v. Sivak, 105 Idaho 674 P.2d 396 Idaho 774 P.2d We analysis each in turn. I will discuss addressing in in a differ- said Charboneau “Although upheld ent issue: we have sen- I. in

tencing by judges penalty district death cases, prepared interpret we are not the Jury The as Fundamental to give judges eighth amendment to more lati- Democracy Preserving juries making in their tude than decisions presented to whether a defendant should be exe- The determination of the issue as appeal 116 Idaho at made in the context of cuted.” 774 P.2d at 320. on should be direction, right history purposes destroyed and have or enfeebled the of the its jury. pro- jury. of the by wisely trial Our forefathers the institution Article the vided in Section 7 of Idaho believe in strict Those who construction right by jury “The Constitution: to trial recognize judi- of our that the Constitution They provid- shall inviolate so remain ...” ciary’s “support and the oath defend they recognized jury ed because the requires the Constitution” that we resist system single guardi- the important is most power temptation judicial to enhance people’s right protected an of the to be through provinces encroachment into the overreaching govern- from oppressive and constitutionally delegated jury. to the ment. II. right Americans New realize that the in jury trial civil cases has been lost almost Right Finding Jury The Fact Federal English England. judges, in the ac- Capital in Cases bar, quiescence compliant totally of a have Ricketts, the 9th Circuit Adamson right the in by jury eliminated to trial civil stated the issue: cases, except in cases of slander. libel or also contends Adamson that the Arizona English The themselves seem to have for- death statutory imposing scheme for gotten jurist, words of their eminent penalty erroneously lists of the elements Blackstone, by jury who wrote that trial is: offense as factors to be determined glory English ... of the law ... [i]t sentencing judge, him depriving thus is most privilege transcendent which right jury to a his decision on for, any subject can enjoy, or wish in of the elements of the crime violation he in his property, cannot affected Fourteenth We Sixth and Amendments. liberty, person or his unani- but agree. neighbors mous consent of twelve of his sentencing procedure under Idaho equals. and in virtually I.C. is all identical Blackstone Commentaries 79. respects material Arizona defective legislators judges Some American and Noteworthy statutory scheme. is the fact similarly following have lost touch with the only Arizona are two of in language Indepen- our Declaration of penalty four states which have the death dence: jury taken the out of fact- have [George has combined with others III] finding process making the ultimate de- jurisdiction foreign us to a subject to our penal- termination to whether the death Constitution, unacknowledged by our ty thirty-one appropriate. fact that laws; giving his assent to their acts of thirty-five states which have pretended legislation: depriving ... For making utilize the us, many cases, of the benefits of trial speaks that determination as to volumes by jury ... Anglo-American what our traditions require. constitutions essayist, philosopher The French de Tocqueville, appreciat- who understood and As the Adamson noted: democracy ed in- America with keener aggravating An “circumstance” which sight any than other observer of the Nine- “death-eligible” murder to a elevates a Century, system teenth stated that penalty phase, remarkably murder in in America: mirrors the attributes of an essential ele- places society

... the real direction guilt during ment of offense governed the hands of the not in ... and phase trial. Like an of a element government... punishes ... He crime, aggravating who an circumstance the criminal ... is the master of real prosecu- the Arizona scheme informs the society. sovereigns All the who proven have tor facts must be a what obtain govern by authority their be chosen own conviction. The circumstance must society, obeying proven direct a The beyond and to instead of reasonable doubt. adversarial, degree 19-2515(g)are first hearing argu- is with oral elements of are to reach that murder. We unable prosecution’s presentation ment and the The listed in conclusion. circumstances governed by the of evidence usual rules clearly the are circumstances to statute presiding judge of evidence. The trial sentencing be in and not considered findings must make on the existence or degree It is elements murder. statutory nonexistence of each of the of first judge, not unconstitutional for a instead aggravating mitigating circumstanc- any of a jury, to determine whether judge aggravating es. If the an finds the aggravating listed in circumstances circumstance, then the burden shifts to the exist. statute put the defendant who must sufficient The I have is sentence underscored total- penal- the death mitigation evidence ly course, pro- if can circular. Of one 13-703; imposed. ty will be A.R.S. see part are nounce that circumstances Rumsey, also Arizona v. U.S. part not the elements of sentencing and [, 104 81 L.Ed.2d S.Ct. crime, they are not penalty a death then (1984). If prosecution is unable 164] penalty crime. elements of a death single a prove aggra- the existence of is, eligi- plain person The fact before a is circumstance, proving vating like not an executed, finding ble to be a must be made element, defendant essential cannot that aggravating circumstance existed. Arizona, put be to death. Cf. Poland v. finding typically jury finding, That is a it 147,] 1754[, U.S. [476 jury was a in territori- function Idaho from (1986) (Court L.Ed.2d framed the 123] days through al is a fact to inquiry relevant as “whether the [*39] jury in found all four of the but sentencing judge reviewing or the penalty. states which have prosecution has that the has “decid[ed] argued my It of course be that could proved its the death not case for if I position were to take is circular ‘acquitted’ petitioners”); has and hence majority sentence from the underscored 212[, at at Rumsey, it as opinion, supra, and restate follows: (where at findings of fact sentenc- 2310] in the circumstances listed statute hearing favorable ing were all to defen- are circumstances to be considered in not dant, of the death “acquitted” he was sentencing are elements of death-eli- but penalty). gible murder. Although in majority Idaho’s Charbo- However, the issue I would submit that is neau, similarly in judiciary Arizona by recognizing best that it is tradi- resolved prosecutors states, urge and the in both accepted jurisprudence tional ev- finding that a trial court in facts as to ery required prove a crime is factor exercising aggravating circumstances an element of that crime. One considered “sentencing determination” distin- cannot to death without the be sentenced guished finding from the elements of a finding aggravating circumstances murder, death-eligible their use of lan- thus, having place and, they would taken justifying position frequently guage appear to be essential elements slips which oth- in Freudian indicate results important pro- crime rather than some less fact, to rule for state’s erwise. during occurring cedural matters sentenc- necessary exactly to do what position ing. it is case, is, did this en- majority United States Court has argument, majority circular gage passed directly upon present- the issue P.2d reasoning page 116 Idaho at case, ed this but what it has written page and its in death about the function process penalty cases indicates that accept argument that the

To Jaimi’s by bringing the four would be best served determining whether must be involved states in line at time. exist, we aggravating circumstances aggra- have to that the would conclude has death sen- Since the Court held that vating community’s comport circumstances listed in tences must with the I.C.

883 number of decency sense of and the increases with the evolving standards facts” Georgia, su- legitimate retribution, decisionmakers. Ballew v. its for moral desire 232, at 1035.1 pra, U.S. at 98 S.Ct. 435 an question judges essential is whether obviously like- are more Twelve individuals reliably alone reflect can the communal society ly prevailing to reflect views values source that are the of the constitu- person.2 than one tionality punishment. capital engage questionable A need not jury By definition, “the juries, judges, not are speculation community to determine what reflecting community,” cross-section of the say particular would in a case. sentiment Missouri, community values. Duren v. bespeak Its is that commu- very function 357, 664, 666, 439 99 58 U.S. 359 S.Ct. nity by exercising judg- sentiment its own (1979). Only representative L.Ed.2d 579 a jury’s response society’s ment. re- “meaningful jury par community assures Illinois, sponse. Witherspoon supra, v. ticipation.” Georgia, Ballew v. 435 U.S. 519-20, 1770 at 391 U.S. 510 at 88 S.Ct. 223, 1029, 1036, 234 235 98 S.Ct. 55 L.Ed.2d 1775-1776, 20 L.Ed.2d “The 776 (1978) opinion). Jurors, unlike (plurality jury significant objec- ... is a and reliable judges, are selected to enhance the likeli contemporary because tive index of values represent they range hood that the whole involved,” directly Gregg it is so v. Geor- community backgrounds, beliefs and 181, gia, supra, 428 U.S. 153 96 at S.Ct. Louisiana, 531-33, Taylor 522, v. 419 U.S. 2928, (1976). By 49 at L.Ed.2d 859 692, 698-699, 95 S.Ct. L.Ed.2d contrast, judges speak cannot themselves (1975); segments com different of the community they sentiment. If are to munity bring representative jury Eighth fulfill the demands of the Amend- “perspectives and values that influence by bringing evolving ment standards of result,” jury both deliberation and id. at principles decency of retribution to 532 n. 95 S.Ct. 698 n. 12. See Hum case, capital punishment they bear in a can 504, 509, phrey Cady, v. 405 U.S. S.Ct. indirectly only do so since are not “[CJourts 1048, 1052, 31 L.Ed.2d 394 More representative They bodies. are not de- over the sheer difference size a between signed good a reflex of a democratic jury panel single twelve-member and a informed, society. judgment Their is best judge may significantly validity bear on the dependable, most within and therefore nar- of a sentencing Eighth decision under the States, v. row limits.” Dennis United Canvassing expert Amendment. empirical 95 L.Ed. studies, the United States (Frankfurter, (1951) J., concurring). has concluded likelihood that a sentiment, represent community Unable to applies decision in a criminal case correctly judge a must undertake to ascertain it. task,3 “the community necessarily common sense a to That is difficult made empirical willingness greatly 1. Ballew amassed also considerable sources overstate the prove reducing evidence to community the number of impose members of the death impairs decisionmakers in accuracy, criminal case penalty specific specific on defendants for fairness, thoroughness and consisten- on crimes. Research behavior reveals that decision, cy generally to the detriment of substantially jurors try- are more when lenient Georgia, defendant. Ballew ing sitting through case and an actual delibera- 1029, 1035-38, 232-39 [98 234] 55 L.Ed.2d they tions will than otherwise indicate. Aeisel (1978) (plurality opinion). Diamond, Peremptory Challenges & Effect of Jury Experiment Verdict: and Court, An in a Federal Significantly, every authorizing jury 2. state in- 30 Stan.L.Rev. District capital sentencing appears re- volvement in (shadow juries randomly subject drawn quire persons. of twelve peremptory challenges guilty vote far more Judges theoretically may have com- access to juries; probably often real because the than contact, munity through as sentiment social hands). liberty was not their defendant’s editorials, through polls, well sources such as People favor the death in the ab- who Cook, journals, newspaper reports. Public presented stract more lenient when are Opinion Policy, Judicial Am.J. Federal descriptions of actual cases. (1977). Unfortunately, Pol.Sci. these 884 reliably reflecting a of commu judges even more As means difficult because —wheth- race, punishment,. sex, nity capital

er considered in terms of or sentiment sentencing bringing jurors pro into lay economic class —do reflect the the wide “ backgrounds ‘places society range within the cess the real direction of of or beliefs in. in juries governed in of the ... and not community.4 reluctance of the hands “[T]he ” Powell, Jury Trial many impose government.’ the the cases to sentence ... [of Crimes, 1, 5 feeling 23 Lee L.Rev. may well reflect the humane Wash. & death] of (1966) quoting Tocqueville, Democracy most de that irrevocable sanction should Quin (Reeve Tran.1948). 282 for small number of extreme in America be reserved a Gregg Georgia, supra, 428 v. cases,” granted tessentially, right jury the to a “is U.S. prevent For in order to variety at 96 S.Ct. at 2929. a of to criminal defendants v. Duncan reasons, government,” judges appear likely oppression less to reflect the Louisiana, 88 that same reluctance.5 S.Ct. general sup- judges great majority, 4. As of 1979 in state courts of their abolitionists. jurisdiction ranging porters capital punishment, apart trial $24,000 earned salaries from from a of California, $54,205 in to in Oklahoma political figures persons and number of hold- $41,000. approximately Nat’l with a mean of office, ing public generally jurists high are Cts., Survey St. of 1 Center for Judicial Salaries training judges.” with traditional and (Sept.1979). general juris- these As of 1977 in Nations, Dept, of and Social United Economic courts, 5,155 only percent the diction 2.5 of Affairs, (ST/SOA/SD/9- Capital Punishment women, judges and 20 states had no wom- were 10-64) (1968). Cook, Judges: en at on these courts. Women all may for these differences lie in reason Tokenism, Courts, the The End in Women in of greater judges depart from the reluctance (Nat’l 1978). St. It Center for Cts. they perceive the the letter of law. what appears only percent 2.6 that as of 1977 of the Oklahoma, See, e.g., Eddings 455 102 judges general on these trial courts were black. Kalven and 71 L.Ed.2d Crockett, G.W. Number and Distribution judge “a in more than one Zeisel discovered (March 1977) Judges (unpublished Black charts envy jury the kind of of the freedom of reach Cts.). Finally, St. on file with Nat’l Center for the judge he as a could not reach” a decision which rigorous requirements ad- educational for Zeisel, judge's supra, at Kalven & 428. The role mission to the bar make it inevitable that the as a strict enforcer even restricts his discretion average judges educational attainment of will sentencing in decisions where that discretion general. community far in exceed that of wholly judge would seem be lawful. As one report and classic shows that 5. Kalven Zeisel’s opposed of draft evasion cases: "I am said disagree judges juries in a substantial num- and conscription. I that war in also believe trials, study judge of 3576 ber of cases. In a impractical. My both and Vietnam is immoral jury reached the same decision about upon sentencing policies fact that are based only percent time. criminal defendant exists, imposed long it should be as as law Zeisel, Jury, & The American H. Kalven H. Cook, purpose.” Sen- its intent and effectuate study specific of the death In their Judges: tencing Federal Draft Cases Behavior of report judge penalty, the authors —1972, (1973). At 42 Cinn.L.Rev. disagreed imposition of a death sen- about the time, study reveals that as Cook’s also same cases, id, percent of at 436. To tence in 19 experi- (unlike jurors) judges individual accrue way, yet another in those cases view the results case, sentencing given type of their ence in a death, judge where one or both recommended patterns regular of se- settles into distinct and jury disagreed percent the time. 602-03, id., verity leniency, so that the or judge or those in which either the cases person judge’s whether a lives or first decision penalty, voted in both would have death may inspire and con- dies far more deliberation percent, judge jury agreed, and 40 percent subsequent decisions. For indi- sideration than only judge would have voted for the however, jurors, gravity vidual only penalty, yet percent death of the capital they approach their decisions cases jury' judge not the vote for cases would the but rarely such will be affected routinization. Thus, essentially juries execution. were sentencing judges report that Florida studies judges. Ibid. As a Unit- twice lenient as impose significantly more inclined to were Report ed concludes: Nations juries recommended sen- than the leading penal "[Ajmong ence, sci- authorities also show them. The studies tences to appreciably supporters of abolition with the judges’ seem to correlate decisions who favour the retention outnumber those race, sex, background of the defen- and social specialists capital punishment. The victim, juries no sciences, showed dant and while the penologists, doctors and writ- social are, any criminology such biases. evidence ers on social science or 1450, (1968), degree is protect guilty 20 L.Ed.2d 491 and to of murder in the second punishable by imprisonment in the terri- against “arbitrary by compli- action” ten prison torial for a term not less than ant, biased, 156, judge. or eccentric Id. at may life. years, and which be extended to 88 S.Ct. at 1451. It “reflects a fundamen- tal decision about the of official exercise into Section 17 was carried over verbatim power two plenary reluctance to entrust Revised Statute 6563 enacted —a years adoption before Constitu- powers liberty over the life and tion. judge group citizens to one or to a

judges.” Ibid.6 These concerns are even words, determining jury, by In other compelling more where immedi- life stands first party guilty whether the of either murder, ately degree in the balance. or second determined penalty the death be whether or not would imposed. III. Idaho Hopper, In Blue Note Inc. v. 85 The Idaho Constitutional Mandate 152, 157, (1962), 377 P.2d 373 we stated: Constitution, approved Idaho as first provisions per- of the constitution 3, 1890, July today, and as reads it taining right jury by to trial are

provides 1, in Art. 7:§ apply construed to as it existed at the “Right by jury. right to trial adoption date of the of the constitution. —The inviolate____” by jury trial shall remain Whipple, Accord. Anderson v. right by jury That of trial as it existed at 112, (1951); 227 P.2d 351 Christensen v. the time our adopted, pro- constitution was 87, Hollingsworth, 6 Idaho P. 211 53 jury participation capital vided for in the (1898); Smith, 89, v. 97 Comish sentencing process. (1975). Section of the P.2d 274 provided Criminal Practice Act of 1864 in employ jury Idaho continued to in the pertinent part: capital sentencing process during all of the any person before whom intervening years until the [A]nd tried, shall, indicted for murder shall of the United States struck down the be through statutes of most states its they person thereof, if find such guilty 1972 decision in v. Georgia, Furman designate verdict, by their whether it be 92 S.Ct. 33 L.Ed.2d 346. murder of degree; the first or second but, person if such shall be convicted on Furman, At the time of I.C. § court, open confession in the court shall read: proceed, by witnesses, examination of person for Every Punishment murder.— degree crime, determine the of the guilty degree in of murder the first shall give accordingly. Every person sentence or,be punished by imprison- suffer death convicted of murder degree, of the first life, prison ment in the state and the death, shall every person suffer jury may punishment decide which shall Moreover, plurality’s speculation "judi- empirical suggests 6. The evidence that indi- Proffitt lead, sentencing anything, judges likely cial greater consistency should if to even vidual state trial are not to achieve imposition consistency among in the trial at the death sentences meted out Cook, capital punishment, Opinion court level of since trial across the state. Public and Fed- 567, judge experienced sentencing Policy, is more in than eral Judicial 21 AmJ.Poli.Sci. impose and therefore is better able to sen- Rather the state can better take advan- analogous imposed tage purported ability judges tences similar to those cases,” to ensure Florida, consistency capital sentencing, v. 428 U.S. at no cost to Proffitt 2960, 2966, must, course, right jury sentencing, by rely- S.Ct. be read in the the defendant’s ing appeal procedure context in which it was made: as a statement of on the automatic probable system result of the Florida this Court must review each death sentence advisory jury may mitigat- comparison involving which an sentence be to other cases similar See, judge, ed at the discretion of the trial or in- crimes or defendants. I.C. 19-2827. U.S., 204-06, imprisonment only Gregg Georgia, creased from life to death v. at 96 S.Ct. at 2939-2940; id, 211-12, manifestly where a life sentence would be un- at 2942-2943 249-50, (White, J., concurring). reasonable. Id. at 96 S.Ct. at 2965-2966. employed jury person inflicted. has at at some time Every guilty of mur- least punishable cases. McGautha degree capital der in the sentencing second imprisonment prison California, in the state not less 200 n. (cid:127) years imprisonment than ten and the 1463 n. 28 L.Ed.2d 711 may extend life. begin During century, a period of over ning jurisdiction jurisdiction in after post-Furman (1973), In its first session the replaced its penalty that retained the death legislature jury the Idaho deleted function dis capital punishment law with mandatory from and made all convic- I.C. 18-4004 § Woodson cretionary jury sentencing, subject of first murder to the degree tions Carolina, 291-92, North penalty. done death This was in an at- (1976) (plu tempt 49 L.Ed.2d to remove the “cruel unusual in Fur- disapproved opinion). punishment” aspects rality By the time the Furman of man. by only I.C. 18-4004 was amended decision in Colorado was the § striking lined out the words as out below: impose capital punish in state the nation to jury in the sen ment without involvement

18-4004. FOR MUR- PUNISHMENT tencing person guilty process. of in Every murder DER. — degree the first shall suffer death or be Despite long history law the at common by punished imprisonment in—the state statutory law the states and under of life, prison jury may for and the decide throughout involving jury this nation punishment—shall—he—inflicted* which — capital sentencing process, Idaho the the Every person guilty of murder in the legislature present enacted in in the statute by degree punishable imprison- second is totally excluded the from its tra- prison ment in the not less than ten state legislative history The ditional function. imprisonment may years the extend even legislature shows was not that to life. for presented provided a bill which with restored law to The Amendment jury participation. only presented, The bill standing. its 1864 general, by attorney was one drafted Supreme After the United States Court presented Senate Bill which was in a series of declared statutes of cases legislature following state- with other states which were similar to Idaho’s purpose: ment of unconstitutional, Idaho 1973 version legislature responded in 1977 with RS in- present statutory providing scheme for S quiry mitigating aggravating into cir- STATEMENT OF PURPOSE cumstances as set forth I.C. Only ago, States changed years few the United seq. That et amendment the stat- con- language Supreme made “rules” pre-1973 except court new ute back its penal- restoring imposition function of the death cerning it omitted added the to I.C. 19-2515: crimes. that we con- ty reference for serious So Supreme Court formed this U.S. FOR 18-4004. MUR- PUNISHMENT Constitution, interpretation of the federal Every provisions of Subject DER. in 1973 19-2515, Code, Legislature enacted every person guilty Idaho Idaho degree present penalty death Section 18- of murder in of the first shall our 18-4004, punished by by impris- death or suffer be 4003 and Code. Every person guilty for onment life. Then, Su- year, last the United States degree punish- murder of the second is changed re- preme again the rules imprisonment prison in the state able lating many capital punishment —after (10) years im- less than ten and the Idaho, states, response had like acted life. prisonment may extend to Court, in its The previous decision. new, cases, five set forth more definitive entirely Except four states concerning sentencing rules where capital nine- punishment abolished sought imposed. century, every jurisdiction American teenth purpose codify this bill is to into present requirements Idaho law these

imposed on the states these most Supreme

recent United States capital punishment so

decisions

we expres- will conform with this latest (Emphasis supplied.)

sion law. misleading in- purpose statement suggests

sofar it

Court decisions mandated the removal

the jury powers from its traditional

functions; the United States at an never earlier time or this expression required

“latest of the law”

jury non-involvement. jury participation capital

Since sen-

tencing process part right to “trial

by jury” guaranteed inviolate Art. Constitution, 7 of I re- would

verse proper sentencing and remand for urge legislature

and would amend provide

the statutes to for proper jury par-

ticipation capital pun- in order that future subject

ishment will cases

serious defect. P.2d 224

Norman E. and Helen Ar ARRINGTON

rington, wife, husband and Plaintiffs-

Appellants/Cross-Respondents,

ARRINGTON BROTHERS CONSTRUC

TION, INC., corporation, an Idaho De Walker, Weiser, Lary C. and Nathan S. fendant-Respondent/Cross-Appellant. Cal., Arrington, Diego, appellants San for No. 17343. cross-respondents. Arrington Nathan S. argued.

Supreme Court of Idaho. Benoit, Alexander, Sinclair, & Harwood Sept. Falls, High, defendant-respon- Twin argued. dent. J. Walter Sinclair BISTLINE, Justice. Arrington

Defendant Brothers Construc- tion, (hereafter ABC) general Inc. is a con- tractor. 1985 ABC secured contract

Case Details

Case Name: State v. Lankford

Court Name: Idaho Supreme Court

Date Published: Jul 10, 1989

Citation: 781 P.2d 197

Docket Number: 15759, 16192

Court Abbreviation: Idaho